TressCox Lawyers - Federal Government introduces Vacancy Fees for Foreign Property Investors

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In the 2017-2018 Federal Budget announced on May 9 2017, the Federal Government revealed their intention to place an annual fee on foreign owners of Australian residential property that leave their property vacant.

On 7 September 2017, amendments to the Foreign Acquisitions and Takeovers Act 1975 (FATA) were introduced in the House of Representatives as the Treasury Laws Amendment (Housing Tax Integrity) Bill 2017, to implement the annual vacancy fee on foreign owners of Australian residential properties.

The aim of the annual vacancy fee is to increase the number of residential properties available for Australians to live in by providing a financial incentive for the foreign owners of Australian residential real estate to make their property available on the rental market.

The annual vacancy fee will be levied on foreign owners of residential properties where the property is not occupied or genuinely available on the rental market for at least 183 days in a 12 month period. The fee levied on the foreign owner will be equivalent to the foreign investment application fee which was paid at the time of application to the Foreign Investment Review Board for approval.

The vacancy fee applies to foreign persons who are owners of Australian residential real estate.

Section 4 of FATA provides the definition of a ‘foreign person’:

a.     An individual not ordinarily resident in Australia; or

b.     A corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or

c.     A corporation in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or

d.     The trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or

e.     The trustee of a trust in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or

f.      A foreign government; or

g.     Any other person, or any other person that meets the conditions, prescribed by the regulations.

The vacancy fee applies when:

·       Residential property is not occupied or genuinely available on the rental market for at least 6 months in a 12 month period.

·       If the dwelling is not residentially occupied, or genuinely available to be occupied, for at least 183 days in a 12 month period.

A foreign owner will not be liable to pay the annual vacancy fee if:

·       The owner or a relative of the owner occupies their dwelling for 183 days or more in a 12 month period.

·       The property is subject to lease/s or licence/s with a minimum duration of 30 days which total 183 days in a 12 month period.

·       The property is made genuinely available on the rental market, with minimum durations of 30 days, for a total of 183 days in a 12 month period.

o   A dwelling will be considered genuinely available for occupation as a residence if the dwelling is: made available on the rental market, advertised publicly and available at a market rent.

o   Where a foreign owner chooses to utilise a web-based short term stay site (e.g. Airbnb) and only makes the property available for periods of less than 30 days in order to maintain flexibility, this will not count towards the minimum 183 days as this type of rental does not make the property genuinely available for periods of 30 days or more.

·       The foreign person owns residential land without a dwelling or currently undergoing construction of a dwelling.

If you are liable to pay the fee:

·       Foreign owners are required to give a ‘vacancy fee return’ to the Commissioner of Tax (Commissioner) after the end of each year to advise the number of days a residential property was occupied in a 12 month period.

·       The Commissioner will issue a notice to foreign owners if a vacancy fee is payable, explaining why the liability has arisen. The amendments grant the Treasurer with powers to recover unpaid amounts and civil penalties may apply where a foreign person fails to submit a ‘vacancy fee return’ or keep the required records.

Gary Newton, Partner
Sydney